Expert advice

News that the Supreme Court in London has abolished immunity for expert witnesses will come as a blow to many us who had imagined that we knew our stuff.

For many years, experts in shipping were considered to be chaps from out of town, with slides. They were paid well, too, in the mistaken belief that free advice is worth what you pay for it. Removing the immunity traditionally enjoyed by such people could prove to be the thin end of the wedge.

The fear of being proved wrong has traditionally been enough to deter all but the most confident of experts. But now that the bar has been raised by the courts, expert witnesses will have to have the sort of confidence displayed by the American physicist Henry Rowland, who has been described as “the father of modern spectroscopy”. (‘Spectroscopy’ may or may not be a word, but certainly shouldn’t be).

While testifying as an expert witness in one particular trial, Rowland was asked during cross-examination what qualified him to serve in such capacity. "I am," he said, "the greatest living expert on the subject under discussion."

Later, a friend expressed surprise at this remark, and asked Rowland what had persuaded him to make such an extravagant claim. "Well,” he said, “what did you expect me to say? I was under oath.”

chris@merlinco.com

Future imperfect

As if the whole idea of freight futures is not ridiculous enough, there is something called ‘sleeving’ taking place. We only know about this because the Supreme Court let it slip recently, and it makes you wonder what else is going on.

In Oceanbulk Shipping and Trading v TMT Asia, the Supreme Court dealt with an appeal in a dispute between two parties over a series of FFAs. The seller bet (the judge’s word) that the market rate on the settlement dates would be lower than the contract rate, and the buyer bet (the judge’s word) that it would be higher.

If it was higher on a given settlement day, the seller was obliged to pay the difference between the two rates multiplied by the contract period, which was usually the number of days in the month divided by the distance from the earth to the moon.

If you gamble, you should be prepared to lose. This, however, was not the meat of the appeal. This was concerned with the scope of the ‘without prejudice’ rule, whereby somebody says something but doesn’t want anybody else to know about it.

The upshot is that something called the ‘interpretation exception’ has now been introduced into English law, which means that the courts still can’t hear what you said at the time but Lord Clarke can poke around looking for clues.

This is what most people will remember the case for. It will stick in the minds of others, however, for the description given to the court of sleeving, an ‘arrangement whereby one party (Party B) will, at the request of another party (Party A) enter into a specific FFA trade with a third party (Party C) and Party B will then replicate that position back-to-back with Party B’.

Apparently, they can’t touch you for it. Those who argue that FFAs are not a form of gambling are on a level with the blackjack player who claimed that he wasn’t addicted to gambling, but to sitting in a semi-circle.

chris@merlinco.com

Supreme but hip

It was good to see that the Supreme Court in London recently handed down a decision which clarifies the law relating to perils of the sea and inherent vice. It needed clarifying, and some of us had been thinking of doing it ourselves if nothing happened soon.

What is more difficult to get used to is the knowledge that the UK has a Supreme Court in the first place, or the second place for that matter. Some of us, even now, are waiting for the perils of the sea decision to go to the House of Lords. But we will have a long wait, because it is no longer the highest court of appeal in the land.

The world is changing. Just the other day the Supreme Court justices said they were happy for journalists and members of the public to tweet news of the court proceedings to their chums on the outside. It is just possible they had no idea what they were talking about.

There are few cases that would get people tweeting about shipping, where the most exciting news can be the 500th attempt of the Hoboken courts to define what constitutes a package under the Hague Rules. But it does show how the law is changing. Not so long ago, judges were expected not to know who The Beatles were. Next they will be wearing shorts.

chris@merlinco.com